EEOC Appeal 2019005811

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Terrence H.,1
Complainant,
v.
Robert Wilkie,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 2019005811
Hearing No. 540-2014-00211X
Agency No. 200P-0644-2013102570
DECISION
Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or
Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s November 8, 2018 final
order concerning an equal employment opportunity (EEO) complaint claiming employment
discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42
U.S.C. § 2000e et seq.
BACKGROUND
During the period at issue, Complainant worked for the Agency as a General Staff Surgeon in
Phoenix, Arizona.
On July 5, 2013, Complainant filed a formal EEO complaint. Therein, Complainant claimed that
the Agency discriminated against him based on race, national origin (Middle Eastern), religion
(Muslim), and in reprisal for prior protected EEO activity.2
1 This case has been randomly assigned a pseudonym which will replace Complainant’s name
when the decision is published to non-parties and the Commission’s website.
2 The record reflects that Complainant amended his initial complaint.

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After an investigation, the Agency provided Complainant with a copy of the report of investigation
and notice of the right to request a hearing before an Equal Employment Opportunity Commission
Administrative Judge (AJ). Complainant timely requested a hearing and the AJ held a hearing on
March 27-March 31, 2017, and issued a decision on September 28, 2018.
The AJ’s decision framed Complainant’s claims in the following fashion:
Complainant was subjected to disparate treatment based on his religion (Muslim) and
reprisal, including his summary suspension, the convening of a summary review board
(SRB), and his termination when:3
1. 	On February 26, 2013, without explanation, Complainant was informed that
his proficiency rating was being indefinitely extended;
2. 	On 	March 	19, 	2013, 	Complainant’s 	second-level 	supervisor 	(S2) 	told
Complainant not to mention his religion to patients;
3. 	On May 15, 2013, Complainant was placed on administrative leave;
4. 	On May 28, 2013, Complainant’s clinical privileges were suspended;
5. 	On 	September 	9, 	2013, 	Complainant’s 	objections 	to 	the 	selection 	of
[Professional Standard Board] panel members were ignored;
6. 	On or about September 19, 2013, Complainant received a memorandum
terminating him during his probationary period. AJ Decision at 1 and 2.
The AJ found that Complainant was subjected to discrimination based on religion and retaliation
for all the claims above, with the exception of claim (2). AJ Decision at 2. The AJ ordered the
Agency to take the following actions:
1. 	Pay Complainant non-pecuniary damages in the amount of $200,000
2. 	Provide Complainant backpay from the date of his termination in an amount to be
determined, with interest, including out-of-pocket costs that he incurred to replace
benefits, such as medical coverage, to which he would otherwise been entitled. Front
pay shall also be paid under the circumstances as set forth herein.4
3 During the hearing, Complainant withdrew his claim of discrimination based on national origin
and race as well as being subjected to a hostile work environment. 	AJ Decision at 1, n.1.
4 The AJ found that if Complainant was not able to be reinstated to his position of a general staff
surgeon due to no longer having sufficient licensure than he would be entitled to front pay. AJ
Decision at 47-48.

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3. 	All 	appropriate tax-deferred 	contributions 	to 	the Complainant’s 	Thrift 	Savings
Program account during the backpay period, as well as any earnings thereon.
4. 	A taxable consequences award in an amount to be determined after the Agency has
calculated 	and 	paid 	Complainant’s 	back 	and 	front 	pay awards 	and 	following
Complainant’s 	submission 	to 	the 	Agency 	of 	the 	amount 	of 	the 	adverse 	tax
consequences of the lump sum payment(s) in the tax year of those awards.
5. 	Attorney’s fees in the amount of $80,704.
6. 	Expungement of all Agency records relating to Complainant’s termination.
7. 	A notice with of copy of the [AJ’s Decision] to the appropriate licensing and
professional boards.
8. 	A posted notice of the [AJ’s Decision]. 	AJ’s Decision at 55-56.
The Agency subsequently issued a final order adopting the AJ’s finding that Complainant proved
that the Agency subjected him to discrimination as alleged.
By letter to the Agency’s EEO Director dated January 30, 2019, Complainant’s attorney requested
enforcement of the Agency’s final action.
The instant appeal followed. On appeal, Complainant, though his attorney, asserts that the Agency
has failed to pay Complainant’s backpay and reinstate him or pay him front pay.
ANALYSIS AND FINDINGS
The record reflects that on February 10, 2020, the Agency issued its compliance report regarding
its actions taken pursuant to its final order. 	The Agency’s compliance report contains screen
printouts indicating a payment to Complainant in the amount of $882,447.59 for backpay and a
payment to Complainant in the amount of $2,446,118.66 for front pay.5
5 The compliance report also contains a signed memorandum indicating Complainant’s termination
documents have been expunged from his personnel file. In addition, the compliance report also
contains a letter to the State Licensing Board from the Agency that it was providing a copy of the
decision finding discrimination, screen printouts indicating that the Agency paid $200,000 in non-
pecuniary compensatory damages and $80,704 for attorney’s fees, and a copy of a posting order
regarding the finding of discrimination,

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In an email from Complainant’s new attorney to the Agency dated March 9, 2020, the attorney
argued, “although the Agency has submitted screenshots showing payments of backpay and front
pay, the Agency has not provided any documentation as to how these documents were calculated.”
Complainant’s attorney expressly raises the issue of the amount of backpay and front pay in his
email. Thus, we will address these matters herein.6
We are unable to determine whether the Agency is in compliance with its final order with respect
to backpay and front pay based on the record before us. The Agency submitted copies of printouts
reflecting that payments were made to Complainant for backpay and front pay. However, we are
unable to ascertain from these documents if Complainant was provided with the appropriate
amount of back pay and front pay, as there is no explanation of how the calculations were done.
See Complainant v. Dep’t of Transportation, EEOC Petition No. 0420130020 (Apr. 16, 2015)
(explaining that an agency needs to provide a plain language explanation of how it calculates a
backpay award).
Accordingly, we REMAND this matter to the Agency to supplement the record in accordance with
the ORDER below.
ORDER
Within ninety (90) days from the date this decision is issued, the Agency shall:
1. 	The Agency shall supplement the record with a clear, plain language explanation in
writing regarding its calculations pertaining to Complainant’s backpay and front pay,
including the calculation of all benefits provided to Complainant and providing
explanations for any acronyms and abbreviations that would not be generally familiar
to others reviewing the calculations or that contain language specific to the Agency.
The Agency shall also provide documentation supporting it calculations and any
relevant Agency policy or Office of Personnel Management guidelines.
2. 	The Agency should issue a final decision, with appeal rights to the Commission,
regarding whether the Agency is in compliance with its November 8, 2018 final
order.
The Agency is directed to submit a report of compliance, as provided in the statement entitled
“Implementation of the Commission’s Decision.” The report shall include documentation
verifying that the corrective action has been implemented.
6 Complainant’s attorney in his March 9, 2020 email does not expressly contest the other remedies
set forth in the Agency’s November 8, 2018 final order. Thus, we will not address them herein.

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IMPLEMENTATION OF THE COMMISSION’S DECISION (K0719)
Under 29 C.F.R. § 1614.405(c) and §1614.502, compliance with the Commission’s corrective
action is mandatory. Within seven (7) calendar days of the completion of each ordered corrective
action, the Agency shall submit via the Federal Sector EEO Portal (FedSEP) supporting documents
in the digital format required by the Commission, referencing the compliance docket number under
which compliance was being monitored. 	Once all compliance is complete, the Agency shall
submit via FedSEP a final compliance report in the digital format required by the Commission.
See 29 C.F.R. § 1614.403(g). The Agency’s final report must contain supporting documentation
when previously not uploaded, and the Agency must send a copy of all submissions to the
Complainant and his/her representative.
If the Agency does not comply with the Commission’s order, the Complainant may petition the
Commission for enforcement of the order. 29 C.F.R. § 1614.503(a). The Complainant also has
the right to file a civil action to enforce compliance with the Commission’s order prior to or
following an administrative petition for enforcement. See 29 C.F.R. §§ 1614.407, 1614.408, and
29 C.F.R. § 1614.503(g). Alternatively, the Complainant has the right to file a civil action on the
underlying complaint in accordance with the paragraph below entitled “Right to File a Civil
Action.” 29 C.F.R. §§ 1614.407 and 1614.408. A civil action for enforcement or a civil action on
the underlying complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c) (1994 & Supp.
IV 1999). 	If the Complainant files a civil action, the administrative processing of the
complaint, including any petition for enforcement, will be terminated. 	See 29 C.F.R.
§ 1614.409.
Failure by an agency to either file a compliance report or implement any of the orders set forth in
this decision, without good cause shown, may result in the referral of this matter to the Office of
Special Counsel pursuant to 29 C.F.R. § 1614.503(f) for enforcement by that agency.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0617)
The Commission may, in its discretion, reconsider the decision in this case if the Complainant or
the Agency submits a written request containing arguments or evidence which tend to establish
that:
1. 	The appellate decision involved a clearly erroneous interpretation of material fact or
law; or
2. 	The appellate decision will have a substantial impact on the policies, practices, or
operations of the Agency.
Requests to reconsider, with supporting statement or brief, must be filed with the Office of Federal
Operations (OFO) within thirty (30) calendar days of receipt of this decision.

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A party shall have twenty (20) calendar days of receipt of another party’s timely request for
reconsideration in which to submit a brief or statement in opposition. See 29 C.F.R. § 1614.405;
Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110),
at Chap. 9 § VII.B (Aug. 5, 2015). All requests and arguments must be submitted to the Director,
Office of Federal Operations, Equal Employment Opportunity Commission. 	Complainant’s
request may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by
certified mail to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark,
the request to reconsider shall be deemed timely filed if it is received by mail within five days of
the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. The agency’s request
must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29
C.F.R. § 1614.403(g). The request or opposition must also include proof of service on the other
party.
Failure to file within the time period will result in dismissal of your request for reconsideration as
untimely, unless extenuating circumstances prevented the timely filing of the request. 	Any
supporting documentation must be submitted with your request for reconsideration. 	The
Commission will consider requests for reconsideration filed after the deadline only in very limited
circumstances. See 29 C.F.R. § 1614.604(c).
COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION (R0610)
This is a decision requiring the Agency to continue its administrative processing of your complaint.
However, if you wish to file a civil action, you have the right to file such action in an appropriate
United States District Court within ninety (90) calendar days from the date that you receive this
decision. 	In the alternative, you may file a civil action after one hundred and eighty (180)
calendar days of the date you filed your complaint with the Agency, or filed your appeal with the
Commission. If you file a civil action, you must name as the defendant in the complaint the person
who is the official Agency head or department head, identifying that person by his or her full name
and official title. Failure to do so may result in the dismissal of your case in court. “Agency” or
“department” means the national organization, and not the local office, facility or department in
which you work. 	Filing a civil action will terminate the administrative processing of your
complaint.
RIGHT TO REQUEST COUNSEL (Z0815)
If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request
permission from the court to proceed with the civil action without paying these fees or costs.
Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the
court to appoint an attorney for you. You must submit the requests for waiver of court costs or
appointment of an attorney directly to the court, not the Commission. The court has the sole
discretion to grant or deny these types of requests.

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Such requests do not alter the time limits for filing a civil action (please read the paragraph titled
Complainant’s Right to File a Civil Action for the specific time limits).
FOR THE COMMISSION:
______________________________ 	Carlton M. Hadden’s signature
Carlton M. Hadden, Director
Office of Federal Operations
June 30, 2020
Date